Lord Chief Justice de Grey.--If either myself, or any of
my brothers on the Bench, had any doubt in this case, we
should certainly have taken some time to consider, before
we had given our opinions; but the case seems so very
clear to us all, that we have no reason for delay.

The writ by which the lord-mayor is now brought before
us, is a habeas corpus at common law, for it is not signed
per statutum; it is called a prerogative writ for the King;
or a remedial writ; and this writ was properly advised by
the counsel for his Lordship, because all the Judges (including
Holt) agreed, that such a writ as the present case
required, is not within the statute: this is a writ by which
the subject has a right of remedy to be discharged out of
custody, if he hath been committed, and is detained contrary
to law; therefore the Court must consider, whether
the authority committing is a legal authority; if the commitment
is made by those who have authority to commit,
this Court cannot discharge or bail the party committed,
nor can this Court admit to bail, one charged or committed
in execution. Whether the authority committing the
lord-mayor, is a legal authority or not, must be adjudged
by the return of the writ now before the Court; the return
states the commitment to be by the House of Commons,
for a breach of privilege, which is also stated in the return;
and this breach of privilege or contempt is, as the counsel
has truly described it, threefold; discharging a printer in
custody of a messenger by order of the House of Commons;
signing a warrant for the commitment of the messenger,
and holding him to bail; that is, treating a messenger
of the House of Commons as acting criminally, in the
execution of the orders of that House. In order to see
whether that House has authority to commit, see Co. 4
Inst. 23. Such an assembly must certainly have such authority,
and it is legal because necessary: Lord Coke says
they have a judicial power; each member has a judicial seat
in the House, he speaks of matters of judicature of the
House of Commons. 4 Inst. 23. The House of Commons,
without doubt, have power to commit persons examined
at their Bar touching elections, when they prevaricate or
speak falsely; so they have for breaches of privilege, so
they have in many other cases. Thomas Long gave the
Mayor of Westbury 4l. to be elected a burgess; he was
elected, and the mayor was fined and imprisoned, and
Long removed. Arthur Hall, a member, was sent to the
Tower, for publishing the conferences of the House. 4
Inst. 23. This power of committing must be inherent in
the House of Commons, from the very nature of its institution,
and therefore is part of the law of the land; they
certainly always could commit in many cases: in matters of
elections, they can commit sheriffs, mayors, officers, witnesses,
&c. and it is now agreed that they can commit generally
for all contempts. All contempts are either punishable
in the Court contemned, or in some higher Court;
now the Parliament has no Superior Court; therefore the
contempts against either House can only be punished by
themselves. The stat. 1 Jac. 1, cap. 13, sect. 3, sufficiently
proves, that they have power to punish, it is in these
words, viz. "Provided always, that this Act, or any thing
therein contained, shall not extend to the diminishing of
any punishment to be hereafter by censure in Parliament
inflicted upon any person which hereafter shall make, or
procure to be made, any such arrest as is aforesaid." So
that it is most clear, the Legislature have recognized this
power of the House of Commons. In the case of The Aylesbury
men, the counsel admitted, Lord Chief Justice Holt
owned, and the House of Lords acknowledged, that the
House of Commons had power to commit for contempt
and breach of privilege. Indeed, it seems, they must have
power to commit for any crime, because they have power
to impeach for any crime. When the House of Commons
adjudge any thing to be a contempt, or a breach of privilege,
their adjudication is a conviction, and their commitment
in consequence, is execution; and no Court can discharge
or bail a person that is in execution by the
judgment of any other Court. The House of Commons
therefore having an authority to commit, and that commitment
being an execution, the question is, what can this
Court do? It can do nothing when a person is in execution,
by the judgment of a Court having a competent jurisdiction;
in such case, this Court is not a Court of Appeal.

It is objected; 1, that the House of Commons are mistaken,
for that they have not this power, this authority; 2,
that supposing they have, yet in this case they have not
used it rightly and properly; and 3, that the execution of
their orders was irregular. In order to judge, I will consider
the practice of the Courts in common and ordinary
cases. I do not find any case where the Courts have taken
cognizance of such execution, or of commitments of this
kind; there is no precedent of Westminster-Hall interfering
in such a case. In Sir J. Paston's case, 13 Rep. there is
a case recited from the Year-Book, where it is held that
every Court shall determine of the privilege of that Court;
besides, the rule is, that the Court of remedy must judge
by the same [law] as the Court which commits: now this
Court cannot take cognizance of a commitment by the
House of Commons, because it cannot judge by the same
law; for the law by which the Commons judge of their
privileges is unknown to us. If the Court of Common Pleas
should commit a person for a contempt, the Court of
King's Bench would not inquire into the legality or particular
cause of commitment, if a contempt was returned; yet
in some cases the Court of King's Bench is a Court of inquiry,
but in this case is only co-ordinate with this Court.
In the case of Chambers, Cro. Car. 168, Chambers was
brought up by habeas corpus out of the Fleet; and it was
returned, that he was committed by virtue of a decree in
the Star-Chamber, by reason of certain words he used at
the council-table, &c. for which he was censured to be
committed to the Fleet, till he made his submission at the
council-table, and paid a fine of 2000l. and at the Bar he
prayed to be delivered, because the sentence was not warranted
by any law or statute: for the Statute 3 Hen. 7,
which is the foundation of the Court of Star-Chamber,
doth not give them any authority to punish for words only.
But all the Court informed him, that the Court of Star-Chamber
was not erected by the Stat. 3 Hen. 7, but was a
Court many years before, and one of the most high and
honourable Courts of Justice; and to deliver one who was
committed by the decree of one of the Courts of Justice,
was not the usage of this Court, and therefore he was remanded.
The Courts of B. R. or C. B. never discharged
any person committed for contempt, in not answering in
the Court of Chancery, if the return was for a contempt;
if the Admiralty Court commits for a contempt, or one be
taken up and committed on an excommunicato expiendo,
this Court never discharges the persons committed. Formerly,
when many abuses were committed, and the people
could not obtain a remedy, the subject was not contented
with the ancient habeas corpus, but did not complain of
the Courts for refusing them what they could not by law
grant them; instead of that, they sought redress by petition
to the Throne. In Chief Justice Wilmot's time, a person
was brought by habeas corpus before this Court, who had
been committed by the Court of Chancery of Durham;
that Court being competent, and having jurisdiction, the
man was not discharged, but recommitted. How then can
we do any thing in the present case, when the law by which
the lord-mayor is committed, is different from the law by
which he seeks to be relieved? He is committed by the law
of Parliament, and yet he would have redress from the
common law; the law of Parliament is only known to Parliament-men,
by experience in the House. Lord Coke says,
Every man looks for it, but few can find it. The House of
Commons only know how to act within their own limits;
we are not a Court of Appeal; we do not know certainly
the jurisdiction of the House of Commons; we cannot
judge of the laws and privileges of the House, because we
have no knowledge of those laws and privileges; we cannot
judge of the contempts thereof, we cannot judge of the
punishment therefore.

I wish we had some code of the law of Parliament; but
till we have such a code, it is impossible we should be able
to judge of it. Perhaps a contempt in the House of Commons,
in the Chancery, in this Court, and in the Court of
Durham, may be very different; therefore we cannot
judge of it, but every Court must be sole judge of its own
contempts. Besides, as the Court cannot go out of the return
of this writ, how can we inquire into the truth of the
fact, as to the nature of the contempt? We have no means
of trying whether the lord-mayor did right or wrong: this
Court cannot summon a jury to try the matter; we cannot
examine into the fact; here are no parties in litigation before
the Court: we cannot call in any body; we cannot hear
any witnesses, or depositions of witnesses; we cannot issue
any process; we are even now hearing ex parte, and without
any counsel on the contrary side. Again, if we could
determine upon the contempts of any other Court, so
might the other Courts of Westminster-Hall; and what
confusion would then ensue! none of us knowing the law
by which persons are committed by the House of Commons.
If three persons were committed for the same
breach of privilege, and applied severally to different
Courts, one Court perhaps would bail, another Court discharge,
a third re-commit.

Two objections have been made, which I own have great
weight; because they hold forth, if pursued to all possible
cases, consequences of most important mischief. 1st, it is
said, that if the rights and privileges of Parliament are legal
rights, for that very reason the Court must take notice
of them, because they are legal. And 2dly, if the law of
Parliament is part of the law of the land, the Judges must
take cognizance of one part of the law of the land, as well
as of the other. But these objections will not prevail. There
are two sorts of privileges which ought never to be confounded;
personal privilege, and the privilege belonging
to the whole collective body of that assembly. For instance,
it is the privilege of every individual member, not to be
arrested; if he was arrested, before the Stat. 12 & 13 W. 3,
the method in Westminster-Hall was, to discharge him by
writ of privilege under the Great Seal, which was in the
nature of a supersedeas to the proceedings; and as soon as
it came into the Court of B. R. and was pleaded there,
then it became a record, and the pleading concluded, si
Curia domini Regis placitum praedictum cognoscere velit
aut debeat. The Stat. 11 & 12 W. 3, has altered this, and
there is now no occasion to plead the privilege of a member
of Parliament. 2 Stran. 985, Holiday & Al. versus Colonel
Pitt. There is a great difference between matters of
privilege coming incidentally before the Court, and being
the point itself directly before the Court; in the first case
the Court will take notice of them, because it is necessary,
in order to prevent a failure of justice; as in Lord Banbury's
case, where the Court of King's Bench determined against
the determination of the House of Lords; but in that case
they considered the legality and validity of the letters patent,
without regarding the other right of a seat in the
House of Lords, with which the Court did not concern
themselves. The counsel at the Bar have not cited one case
where any Court of this Hall ever determined a matter of
privilege which did not come incidentally before them. If
a question is to be determined in this Court touching a
descent, whereby property is to be determined, and which
depends upon legitimacy; that is, whether the father and
mother were married lawfully; this Court must determine
by the bishop's certificate; but in some cases, where the
legitimacy of marriage does not come in question, but cohabitation
only for a great length of time, which is evidence
of a marriage, comes in question, this Court will determine
according to the verdict of a jury, although the
Courts of Westminster-Hall go by a different rule from
the Spiritual Courts. But the present case differs much
from those which the Court will determine; because it does
not come incidentally before us, but is brought before us
directly, and is the whole point in question; and to determine
it, we must supersede the judgment and determination
of the House of Commons, and a commitment in execution
of that judgment.

Another objection has been made, which likewise holds
out to us, if pursued in all its possible cases, some dreadful
consequences; and that is, the abuses which may be made
by jurisdictions from which there is no appeal, and for
which abuses there is no remedy: but this is unavoidable;
and it is better to leave some Courts to the obligation of
their oaths. In the case of a commitment by this Court or
the King's Bench, there is no appeal. Suppose the Court
of B. R. sets an excessive fine upon a man for a misdemeanor;
there is no remedy, no appeal to any other Court.
We must depend upon the discretion of some Courts. A
man not long ago was sentenced to stand in the pillory, by
this Court of Common Pleas, for a contempt. Some may
think this very hard, to be done without a trial by jury; but
it is necessary. Suppose the Courts should abuse their jurisdiction,
there can be no remedy for this: it would be a
public grievance; and redress must be sought from the
Legislature. The laws can never be a prohibition to the
Houses of Parliament; because, by law, there is nothing
superior to them. Suppose they also, as well as the Courts
of Law, should abuse the powers which the constitution
has given them, there is no redress, it would be a public
grievance. The constitution has provided checks to prevent
its happening; it must be left at large; it was wise to
leave it at large: some persons, some Courts, must be
trusted with discretionary powers; and though it is possible,
it is in the highest degree improbable, that such abuses
should ever happen, and the very supposal is answered by
Serjeant Hawkins, in the place cited at the Bar. As for the
case of the Chancery committing for crimes, that is a different
thing, because the Chancery has no criminal jurisdiction;
but if that Court commits for contempts, the persons
committed will not be discharged by any other Court.
Many authorities may be drawn from the reign of Charles,
but those were in times of contest. At present, when the
House of Commons commits for contempt, it is very necessary
to state what is the particular breach of privilege;
but it would be a sufficient return, to state the breach of
privilege generally: this doctrine is fortified by the opinion
of all the Judges, in the case of Lord Shaftesbury, and I
never heard this decision complained of till 1704; though
they were times of heat, the Judges could have no motive
in their decision, but a regard to the laws: the Houses disputed
about jurisdiction, but the Judges were not concerned
in the dispute. As for the present case, I am perfectly
satisfied, that if Lord Holt himself were to have
determined it, the lord-mayor would be remanded. In the
case of Mr. Murray, the Judges could not hesitate concerning
the contempt by a man who refused to receive his sentence
in a proper posture: all the Judges agreed, that he
must be remanded, because he was committed by a Court
having competent jurisdiction: Courts of Justice have no
cognizance of the Acts of the Houses of Parliament, because
they belong ad aliud examen. I have the most perfect
satisfaction in my own mind in that determination. Sir
Martin Wright, who felt a generous and distinguished
warmth for the liberty of the subject; Mr. Justice Denison,
who was so free from connections and ambition of every
kind; and Mr. Justice Foster, who may be truly called the
magna charta of liberty of persons, as well as fortunes; all
these revered Judges concurred in this point: I am therefore
clearly and with full satisfaction of opinion, that the
lord-mayor must be remanded.

Gould Justice.--I entirely concur in opinion with my
Lord Chief Justice, that this Court hath no cognizance of
contempts or breach of privilege of the House of Commons:
they are the only judges of their own privileges; and
that they may be properly called judges, appears in 4 Inst.
47, where my Lord Coke says, an alien cannot be elected
of the Parliament, because such a person can hold no place
of judicature. Much stress has been laid upon an objection,
that the warrant of the Speaker is not conformable to the
order of the House, and yet no such thing appears upon
the return, as has been pretended. The order says that the
lord-mayor shall be taken into the custody of the serjeant
or his deputy; it does not say, by the serjeant or his deputy.
This Court cannot know the nature and power of the
proceedings of the House of Commons; it is founded on a
different law; the lex et consuetudo Parliamenti, is known
to Parliament-men only. Trewynnard's case, Dier 59, 60.
When matters of privilege come incidentally before the
Court, it is obliged to determine them to prevent a failure
of justice. It is true this Court did, in the instance alluded
to by the counsel at the Bar, determine upon the privilege
of Parliament in the case of a libel; but then that privilege
was promulged and known; it existed in records and lawbooks,
and was allowed by Parliament itself; but even in
that case, we now know that we were mistaken, for the
House of Commons have since determined, that privilege
does not extend to matters of libel. The cases produced
respecting the High Commission Court, &c. are not to the
present purpose, because those Courts had not a legal authority;
the resolution of the House of Commons is an adjudication,
and every Court must judge of its own contempts.

Blackstone Justice.--I concur in opinion, that we cannot
discharge the lord-mayor; the present case is of great importance,
because the liberty of the subject is materially
concerned. The House of Commons is a Supreme Court,
and they are judges of their own privileges and contempts,
more especially with respect to their own members: here
is a member committed in execution by the judgment of
his own House. All Courts, by which I mean to include the
two Houses of Parliament, and the Courts of Westminster-Hall,
can have no controul in matters of contempt. The
sole adjudication of contempts, and the punishment
thereof, in any manner, belongs exclusively, and without
interfering, to each respective Court. Infinite confusion
and disorder would follow, if Courts could by writ of habeas
corpus, examine and determine the contempts of others.
This power to commit results from the first principles
of justice; for if they have power to decide; they ought to
have power to punish: no other Court shall scan the judgment
of a Superior Court, or the principal seat of justice;
as I said before, it would occasion the utmost confusion, if
every Court of this Hall should have power to examine the
commitments of the other Courts of the Hall, for contempts;
so that the judgment and commitment of each respective
Court, as to contempts, must be final, and without
controul. It is a confidence, that may, with perfect safety
and security, be reposed in the Judges, and the Houses of
Parliament. The Legislature since the Revolution (see 9 &
10 W. 3, c. 15) have created many new contempts. The
objections which are brought of abusive consequences
prove too much, because they are applicable to all Courts
of dernier resort: et ab abusu ad usum non valent consequentia,
is a maxim of law as well as of logic. General convenience
must always outweight partial inconvenience;
even supposing (which, in my conscience, I am far from
supposing) that in the present case the House has abused
its power. I know, and am sure, that the House of Commons
are both able and well inclined to do justice. How
preposterous is the present murmur and complaint! the
House of Commons have this power only in common with
all the Courts of Westminster-Hall: and if any persons may
be safely trusted with this power, they must surely be the
Commons, who are chosen by the people; for their privileges
and powers are the privileges and powers of the people.
There is a great fallacy in my brother Glynn's whole
argument, when he makes the question to be, whether the
House have acted according to their rights or not? Can
any good man think of involving the Judges in a contest
with either House of Parliament, or with one another? and
yet this manner of putting the question would produce
such a contest. The House of Commons is the only judge
of its own proceedings: Holt differed from the other
Judges in this point, but we must be governed by the
eleven, and not by the single one. It is a right inherent in
all Supreme Courts: the House of Commons have always
exercised it. Little nice objections of particular words and
forms, and ceremonies of execution, are not to be regarded
in the acts of the House of Commons; it is our
duty to presume the orders of that House, and their execution,
are according to law. The habeas corpus in Murray's
case was at common law. I concur intirely with my
Lord Chief Justice.

Nares Justice.--I shall ever entertain a most anxious
concern for whatever regards the liberty of the subject; I
have not the vanity to think I can add any thing to the
weight of the arguments used by my Lord Chief Justice
and my brothers: I have attended with the utmost industry,
to every case and argument that has been produced,
and most heartily and readily concur with my Lord Chief
Justice and my brothers.